State v. Wynne
| Decision Date | 12 April 2006 |
| Docket Number | No. 40,921-KA.,40,921-KA. |
| Citation | 926 So.2d 789 |
| Parties | STATE of Louisiana, Appellee v. Sash WYNNE, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Law Offices of James L. Fortson, by John N. Bokenfohr, Shreveport, for Appellant.
J. Schuyler Marvin, Webster Parish District Attorney, Charles A. Smith, Assistant District Attorney, for Appellee.
Before BROWN, CARAWAY and LOLLEY, JJ.
This criminal appeal arises from the 26th Judicial District Court, Parish of Webster, State of Louisiana. Pursuant to a plea bargain agreement, Sash Wynne pled guilty to simple burglary, a violation of La. R.S. 14:62. He was subsequently sentenced to serve 12 years imprisonment at hard labor, with credit for time served. Wynne appeals his conviction and sentence. For the following reasons, we affirm.
Wynne was originally charged with first degree murder, which was later reduced to second degree murder, for his alleged involvement in the October 2003 death of Joe Raspberry.1 On December 23, 2004, Wynne appeared in court with his trial counsel and entered a plea of guilty to simple burglary. The trial court ordered a pre-sentence investigative report to be prepared. At the sentencing hearing, the trial court considered the PSI report as well as the factors contained in La. C. Cr. P. art. 894.1 and sentenced Wynne to serve 12 years imprisonment at hard labor, with credit for time served. Subsequently, Wynne filed a motion to reconsider sentence and to withdraw his guilty plea, which was denied by the trial court after a hearing and consideration of same. This appeal by Wynne ensued.
In his first assignment of error, Wynne argues that the trial court erred in denying his motion to reconsider sentence and/or withdraw the guilty plea. Specifically, Wynne argues that his agreement with the state was to testify truthfully at Edwards' trial in exchange for mitigation regarding the length of his sentence, and it was never explained to him that he would receive the maximum sentence allowable for simple burglary. Wynne contends that he was offered and believed that he would receive probation if he testified against Edwards. He maintains that he received no benefit from his truthful testimony against Edwards, the state failed to meet its obligation under the plea bargain agreement, and, as a result, he should have been allowed to withdraw his guilty plea; thus, the trial court erred in not allowing him to subsequently withdraw his guilty plea. We disagree.
A defendant has no absolute right to withdraw a guilty plea. State v. Hoover, 34,952 (La.App.2d Cir.04/05/01), 785 So.2d 184. A trial court, in its discretion, may allow a guilty plea to be withdrawn at any time prior to sentencing. La. C. Cr. P. art. 559(A). After sentence has been imposed, La. C. Cr. P. art. 559 does not apply, although the trial court can still grant a post-sentence motion to withdraw a guilty plea. If the trial court finds either that the guilty plea was not free and voluntary or that the Boykin colloquy was inadequate (to the extent of violating the defendant's constitutional rights), the trial court has the authority to vacate the sentence and set aside the plea. State v. Hoover, supra.
When the record establishes that an accused was informed of and waived his right to trial by jury, to confront his accusers and against self-incrimination (which in this case, Wynne was), the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Bradford, 627 So.2d 781 (La.App. 2d Cir.1993), writ denied, 94-0006 (La.04/22/94), 637 So.2d 154; see also Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Here, Wynne failed to meet that stated burden.
Initially, we point out that on appeal Wynne mischaracterizes the plea agreement between him and the state. He maintains that in exchange for his truthful testimony against Edwards, he was to receive mitigation regarding the length of his sentence, specifically a five-year probation. However, the record does not at all show this to be the plea bargain agreement between Wynne and the state.
At the commencement of Wynne's guilty plea proceeding, the state prefaced the proceeding with a statement that the only agreement between Wynne and the state was that Wynne would "testify truthfully" at the upcoming trial of Edwards, sentencing would be up to the court, and all other charges arising out of the events of October 10, 2003, would be dismissed. Wynne's attorney responded to that as being "agreeable." The trial court asked Wynne if he heard the state's statement and his attorney's response, and if he accepted the agreement. Wynne responded affirmatively. The state went on to describe the new bill of information (for simple burglary) to which Wynne would plead guilty.
The trial court asked Wynne if his attorney explained the minimum and maximum sentence he could receive on all of the original charges, and on the simple burglary charge to which he was about to plead, the colloquy being as follows:
The Court: And has [your attorney] also explained to you the minimum and the maximum sentence you could receive on the charge to which you are about to plead?
Mr. Wynne: Yes, sir.
The Court: Do you recall what the sentence range is?
Mr. Wynne: I think it's zero to twelve, ain't it?
The Court: Zero to twelve with or without hard labor, do you understand that?
Mr. Wynne: Yes, sir.
The Court: And you understand that I will order a presentence investigation in your case.
Mr. Wynne: Yes, sir.
The Court: And that after I receive and review that presentence investigation I'll decide what your actual sentence will be, do you understand that?
Mr. Wynne: Yes, sir, yes, sir.
Upon further questioning by the trial court, Wynne acknowledged that he was satisfied with his legal representation, and he was fully aware of what was going on that day. Wynne denied being under the influence of any type of drug or alcoholic substance. The trial court also advised Wynne that by pleading guilty to a felony offense, it could be used against him in the future as a sentencing enhancement in a habitual offender proceeding, which he understood. The trial court then fully explained to Wynne his Boykin rights, and Wynne acknowledged that he understood and waived those rights by pleading guilty.
Wynne was again asked if he understood that a part of the condition of the plea bargain agreement was that he would testify truthfully against any co-defendants that went to trial, to which he responded, "Yes, sir." The trial court asked the district attorney if that was correct, and the district attorney responded that there were not any co-defendants on this particular bill, but the only remaining co-defendant on the prior bill was Edwards. Wynne's attorney agreed that this information was correct. The colloquy continued:
The Court: All right, so that is a condition of this plea and you understand that and agree to that, Mr. Wynne?
Mr. Wynne: Yes, sir.
The Court: All right. Any promise been made to you, any threat made against you to influence the plea you're about to make?
Mr. Wynne: No, sir. (Emphasis added).
In this case, Wynne filed his motion to withdraw his guilty plea after his sentence was imposed; thus La. C. Cr. P. art. 559 does not apply. The record established that Wynne was informed of and waived his right to trial by jury, to confront his accusers and against self-incrimination, and he also stated his understanding of those rights. Hence, the burden shifted to Wynne to prove that despite this record, his guilty plea was involuntary. See State v. Hoover, supra. Wynne fails to prove that his guilty plea was involuntary.
Wynne was given ample opportunity to express his understanding of his agreement with the state.2 He agreed with the initial characterization of the plea agreement as explained by the state at the commencement of the hearing. He was carefully and fully advised of the sentencing range for simple burglary, and that a presentence investigation report would be ordered and reviewed by the trial court before determining Wynne's sentence. In fact, it is abundantly clear from the guilty plea transcript that Wynne understood that the sentencing range was "zero to twelve, ain't it," as he himself informed the trial court. Finally, he was asked explicitly if any promises had been made to him regarding his plea, and he responded no. Only after Wynne received the maximum sentence did he offer his own self-serving statement, as well as his mother's, that he was promised a probated sentence. Notably, Wynne claims that his trial attorney informed him of the sentencing promise; however, Wynne would not waive the attorney/client privilege which would have allowed his trial attorney to testify regarding their discussions of the plea agreement.
Wynne also claims he met his end of the bargain with the state by testifying truthfully, but that the trial court's subjective belief that Wynne failed to do so resulted in the trial court sentencing him to the maximum penalty for simple burglary. Wynne argues that the trial court's belief caused the agreement between him and the state to be breached. It is well settled that a plea agreement is considered a contract between the state and the criminal defendant. See State v. Peyrefitte, 2004-0742 (La.10/15/04), 885 So.2d 530; State v. Nall, 379 So.2d 731 (1980); State v. Adams, 2004-77 (La.App. 3d Cir.09/29/04), 884 So.2d 694, writs denied, 2004-2709, 2004-2880 (La.02/25/05), 894 So.2d 1131-32; State v. Roberts, 2001-3030 (La.App. 1st Cir.06/21/02), 822 So.2d 156, writ denied, 2002-2054 (La.03/14/03), 839 So.2d 31.
We note that the plea agreement, as clearly stated on the record and agreed to by Wynne, contained two reciprocal elements: Wynne would testify truthfully at Edwards' trial (which he claims he did), and the state would agree...
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